The Law Society of South Africa  participated as amicus in the proceedings in the Western Cape Division of the High Court, where the Women’s Legal Centre Trust (WLCT) successfully brought an application against the President of the Republic of South Africa and Others to, in short, declare that the Executive and Legislature failed to discharge their duty to protect the rights of women and children in Muslim marriages and divorce and to enact legislation to positively remedy the constitutional defects in our law that fails to recognise and regulate Muslim marriages and divorces. On 31 August 2018, a Full Bench ordered the government to enact such legislation within two years.

The President and Minister appealed the whole judgment and the WLCT cross-appealed. On 18 December 2020 the Supreme Court of Appeal (SCA) delivered judgment inter alia declaring the Marriage Act, 1961 and the Divorce Act, 1979 inconsistent with sections of the Constitution of the Republic of South Africa. The declarations of invalidity were suspended for 24 months to enable the Executive and Legislature to remedy the defects by amending existing legislation or passing new legislation. The SCA also granted interim relief, pending the legislative changes. (President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others). (Case no 612/19 ZA SCA177 (18 December 2020).

On 28 June 2022 the Constitutional Court confirmed the order of constitutional invalidity of the SCA and held that the Marriage Act and the Divorce Act are inconsistent with certain sections of the Constitution. The President and Cabinet, together with Parliament, were directed to remedy the defects within 24 months. The Court also provided for interim measures.

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